Goldieblox v. Beastie Boys: Let's Ask An Actual Expert

Monday, November 25, 2013 - 02:50 PM

You’ve probably seen this by now. Goldieblox, a company that makes toys designed to get young girls excited about engineering , is suing the Beastie Boys for the right to use a parody of the song “Girls” in a YouTube ad for their toys.

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Reading the reaction to the case, you quickly suss that for most people it’s about more than the legal implications of copyright.

If you side with Goldieblox, there’s a poetic justice to the whole thing. The Beastie Boys famously morphed from bratty misogynism into very earnest political progressiveness. “Girls,” from Licensed to Ill, is a product of the early, PBR-swilling, giant-inflatable-penis-as-a-tour-prop incarnation of the band.

Girls - to do the dishes

Girls - to clean up my room

Girls - to do the laundry

Girls - and in the bathroom

The poetic justice is in seeing those lyrics, which are, frankly, pretty ugly, transformed into an anthem about female engineering power.

Girls, you think you know what we want

Girls, pink and pretty's it's girls

Just like the fifties it's girls

You like to buy us pink toys

And everything else is for boys

And you can always get us dolls

And we'll grow up like them, false

Plus, if you side with Goldieblox, you probably see a hypocrisy here. The Beastie Boys built a career on sampling. How can they then turn around and tell Goldieblox their own work can only be recontextualized with permission?

If you support the Beastie Boys, then there’s a good chance that this case still isn’t, at its heart, about copyright. It’s about artistic control and about the creep of commercialism.

Throughout their career, the Beastie Boys have maintained a hardline stance against their songs being used in ads. Licensed to Ill was funded with money from a lawsuit against British Airways, who used the song “Beastie Revolution” in a 1984 ad without permission.

And when Adam Yauch died last year, he stipulated that he never wanted any of his songs to be used in advertisements.

I thought about this case all weekend (my life is pretty boring). I grew up on the Beastie Boys, although I also grew up skipping “Girls.” It’s the first song I can remember making me cringe. Up until an hour ago, my sympathies were with the Beastie Boys. After all, I thought, if you can transform any pop song into a jingle and call it parody, aren’t we just headed towards of slippery slope of ads pilfering whatever songs they want?

Then I spoke to an actual expert, Julie Ahrens, Director of Copyright & Fair Use at Stanford’s Center for Internet & Society. She convinced me that Goldieblox is probably in the right here. Both legally, but also in whatever larger ethical artistic morass this case really seems to belong to. After all, while the Goldieblox ad is, in fact, an ad, it’s also a legitimate piece of cultural criticism. Here’s our conversation:

PJ: I have a very confused layman's understanding of fair use. I thought that if it's parody, it may be protected under fair use, but if it's used for a commercial, it probably isn't. So what happens when both of those things are true?

JULIE: There isn't a rule that if you’re doing something that is "commercial," -- which by the way, doesn’t mean something that’s in a commercial, it means used for a commercial purpose -- there isn’t a rule that that’s distinguishing factor. It's not where you draw the line of what's fair use and what's not. It's a subfactor within the fair use analysis.

The way I look at it, you have this song that's very clearly a parody of the original. It’s taking to task the idea that girls are there to do the dishes. And whatever else the original Beastie Boys lyrics said. And Goldieblox is changing it, putting it in a girl’s voice. They're saying, "No! Here's what we do. We can engineer things, we can build apps." So, obviously they’re criticizing the message of the original using and using the original to make fun of it as well.

Now obviously it's a commercial for the toy. But the toy and the commercial are part of a bigger thing than selling the toy. The greater message is, "Let's rethink how we stereotype what's a girl's role, or what a girl's product might be." So this product itself has its own social goal as well. So I think that gives the Goldieblox some real ammunition in a fair use argument.

The way the law works, fair use is a four factor test. And all of the factors are weighed together. Even if the fact that its in a commercial may slightly weigh against finding a fair use, you have these other competing considerations. And frankly, as far as whether it’s commercial or not, they aren't selling a CD that's competing with the Beastie Boys music.

That's another way of looking at it that cuts against the idea that even though its a parody it shouldn't be allowed because its an ad for a product. But it's not for a car or a soda. The message of the product is tied with the parody.

PJ: That makes a lot of sense. That it's not just a question of if its an ad or not - full stop.

JULIE: Yeah. It’s context. The most important thing courts look at when they're looking at a fair use case is "What's the purpose of the use?" It's way too narrow to say this this video is just to sell toys. The purpose of the use is also to get this bigger message out. So you can see how those arguments stack up in favor of the use.

The other question we have to ask ourselves is: "Is this kind of use that society is better off for having or not having?" I take the view that in a country that values free speech that more freedom to criticize and denounce ideas you don't agree with is good, and to do that effectively you often have to use the thing you're criticizing to make your point.

Also, from a practical standpoint I can't imagine this case goes very far. I did see people saying that MCA's will said that his music would never be used in commercials.

PJ: But that seems totally - that seems like it might matter to someone symbolically. But it doesn’t seem like it would matter legally.

JULIE: Right. Unless you buy into the whole line of thinking about copyright, that the most important thing is to control what people can say or can't say. Like JD Salinger was famously protective of his book and wouldn't' let it be made into a movie. That's a right that we give him, that kind of thing. There's that line of thinking. It's more of a moral explanation for why someone like the estate for MCA might be able to control a use like this. But it's not actually the way our fair use and copyright laws are written. Copyright doesn't give you the right to control criticism of your work or your message.

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Comments [24]

mcm

I'm not gonna lie. I love this ad. For a number of reasons.

But, for anyone in doubt about the satirical intention of the album, read the Rolling Stones review of the album from 1986, which I was able to find rather quickly, thanks to the power of the internet.

Here's the opening line of that review: "The Beastie Boys' first album should bear a prominent label, not to protect impressionable teens so much as their elders. warning: certain scenes and references contained herein may seem offensive, even dangerous, until you realize that it's all a colossal joke."

Hello all. I am just dropping in to let you know that I am appropriately mortified that I wrote License to Ill instead of Licensed to Ill. I went in and corrected it, but I deserve scorn from here to eternity.

As a tiny gesture of apology, here's a good Adrock song that you may not have heard. http://www.youtube.com/watch?v=o-Ph88RrHfI

Sheldon Cooper is an expert in theoretical physics, but he doesn't understand irony. The "Expert," Julie, who admittedly DOESN'T EVEN KNOW THE LYRICS ("It’s taking to task the idea that girls are there to do the dishes. And whatever else the original Beastie Boys lyrics said"), along with the author, obviously doesn't understand irony, or they would recognize that the ORIGINAL song was completely ironic, yet Julie, WITHOUT A KNOWLEDGE OF THE LYRICS, let alone their context, obviously, offers the "expert" analysis that, "So, obviously they’re criticizing the message of the original using and using the original to make fun of it as well." Really? It's "obvious" to a person who doesn't even know the LYRICS, understands the MESSAGE the song was conveying. That's curious, to say the least. If Julie is the best "Actual Expert" you can get, PJ, you might as well hang it up and go into a field that doesn't often address irony, as opposed to failing at making an attempt to frame the parody as something that was done with a song that was ironic, to begin with. Might I suggest ANYTHING that doesn't deal with language?

As a musician who writes songs and also gets hired to play for commercials, i wonderwhy copyrighted material should even be subjectedto such transparent PR-grabbing by a company thatis hiding behind a social cause (which btw is questionable to me) (why not market something else/alsofor young boys?) in order to make a profit? In any case, what they are selling does NOTmatter. We're talking about $$; if Goldiebloxbelieves so strongly in their cause, why don't they justdonate all of their products?

If this gets ruled "fair use", I will eat my hat. Clearly GoldieBlox doesn't respect intellectual property. Also, I'm a bit disappointed in On the Media for publishing that "License to Ill was funded with money from a lawsuit against British Airways, who used the song “Beastie Revolution” in a 1984 ad without permission." This is incorrect, plus the name of that album is Licensed to Ill, not License to Ill. Licensed to Ill was a major label album funded by Def Jam/Columbia. The money that the Beastie Boys received from the British Airways lawsuit went toward rent. Sloppy article.

"The Beastie Boys built a career on sampling. How can they then turn around and tell Goldieblox their own work can only be recontextualized with permission?"

Because the Beastie Boys properly licensed (granted, sometimes after the fact) the samples they used. Goldieblox did not, and the BBs have made it clear such permission won't be granted. It's pretty cut-and-dried, despite this "expert" saying it's a parody. It's still a for-profit advertisement using the BBs' work.

Jim: Your comment about stealing begs the question. The actual issue is whether the law gives an artist the right to prohibit parody use to sell products; the answer is the fair use analysis. The law calls it stealing if it can't meet the fair use test, and not if it can. I think that the expert here calls it right - while commerciality weighs against fair use, it's not determinative (e.g., taking an AP copyrighted photo of Hitler and putting a Reuters-copyrighted photo of George Bush's face on it is fair use; selling T-shirts with that on it is still fair use), and the balance here is probably in favor of fair use.

As for the person who suggested Stanford-related commentators are biased, that's a ridiculous argument to make. You could certainly say that Stanford IP people are part of the Silicon Valley, EFF culture, and may be more inclined to view fair use broadly than some other scholars. But that doesn't mean they're biased - they're giving their honest view on the law as they understand it, even if that understanding is colored by cultural factors.

Incidentally, the EFF-friendly Silicon Valley culture may also help explain why GoldieBlox filed for declaratory judgment - which is common in fair use disputes - in the Northern District of California (which covers SF and SV). If they'd waited to be sued, the copyright holders might have argued for venue in the Central District of California (which covers LA) or the Southern District of New York. While the judges are not consciously biased, the culture in NY and LA is probably less fair use-friendly than in the Bay Area.

If the Beastie Boys of "Licensed to Ill" and frankly of much of "Paul's Boutique" were "parodying" sexism, then they were the Andy Kaufman of rap acts. I was 12 when "Licensed to Ill" was released and believe me, NONE of the boys who rapped along to that song "got" that it was parody. They took it literally, much like the lines "and they all switch places when I ring the bell!" and "I did it with a wiffle ball bat."

I was a sexist fool at 20, as well, so I can appreciate that the Beastie Boys "grew out" of this behavior, but they can't handwave the past and retroactively make it something that it wasn't. You're not "parodying" machismo rap by embracing it and actually making it palatable to a larger audience: The Beastie Boys introduced rap to a lot of suburban white kids.

(Conversely, Weird Al is effective 'parody' because he co-opts enough of the original to make it clear that what he's sending up and it's clear that he's playing a *character*)

I do wonder why we are more willing to assume that *obviously* the Beastie Boys weren't serious on "Licensed to Ill" or "Paul's Boutique" but we don't think that Kanye West is "parodying" arrogant pop stars or even that Snoop Dogg's entire stoner persona was "parody."

Disappointed in BB on this. And who said Girls was tongue in cheek? Same album where they talk about raping "with a wiffle ball bat". Watch their early videos to see if this Girls song was a joke, doesnt seem like it to me. And not to use the song in a commercial per Adam's will, well it is no their song, it is different. that referred to selling their songs.

PJ, I'm disappointed. It seems you have failed to see the inherent parody within the 'Girls' song in its original incarnation. The BB were making light of their contemporary misogynistic rap counter-parts. To characterize it as a 'product of the early, PBR-swilling' incarnation of the band, trivializes the earlier message and makes it seem as if the BB used to be misogynists and have since 'seen-the-light', which I believe would be an unfair characterization.

Beastie Boys are claiming copyright infringement and have threatened action. Goldieblox is pre-preemptively suing for declaratory relief, seeking a declaration of non-infringement in federal court in San Francisco.

Two quick points: parody or satire are generally art or entertainment words. Parity, on the other hand, describes quite well the musical similarities.

Your expert's read on this is a little weak, though I don't question her standing to opine. Her opinion, yours, mine; all irrelevant. When interpreting the four prongs for fair use, the opinion that matters the judge's. It's too bad there can't be a more objective measuring stick, but that's where we're at.

I don't have a law degree. I'm a musician and avid reader of Title 17 and related case law. If Fair Use doctrine becomes so flimsy that any company can steal anyone's music to hock products, what is our motivation to continue making art? Songs are pretty, moving artistic endeavors (if that's what we're trying to create), but a song itself doesn't pay my rent or pay for dental work.

Copyright exists for protection from these kinds of infringements. It needs to balance artist rights and those of society at large, certainly. But... they're selling toys. Use an original song. That puts money into the hands of a new upcoming artist (hopefully) and doesn't explicitly rely on the press generated by ginning up a case that will get tossed out of most courts on the face of the facts already publicly available.

Robert Dall; "But why did Goldie Blocks sue the Beastie Boys first? What did that solve?"

What they did was they filed a lawsuit to ask a judge to decide whether their ad is fair use.

It isn't a lawsuit against the Beastie Boys in the way we usually think about lawsuits. It's more like two kids in a classroom having an argument, and one kid asks the teacher to decide.

The only monetary relief sought in the lawsuit is attorney fees and court costs, but I think that's mostly there as something GoldieBlox can give up in settlement negotiations; perhaps secondarily as an incentive to the Beasties to not turn this into an expensive court battle.

hey, can you ask your stanford expert if this other (presumably unlicensed) use with queen's we are the champions falls under parody/fair use...or is the reality just that goldieblox doesn't give a shit about intellectual property?

The only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court, which is why GoldieBlox is rightly taking preemptive legal action. They aren't "suing" the Beastie Boys in the way they'd like to have you think.

Also, to Shaw from Bronx, NY -- it sounds like you haven't evolved past the misogynist lyrics in the original song, and further prove that GoldieBlox's parody is social commentary more than an ad.

Didn't the Goldieblox founder also go to Stanford? Are they friends? This seems biased regardless. Hiding behind fair use is a bit too obvious isn't it...yea yea girls demand more/better toy choices (these are essentially Tinker Toys, right?), the original song was sexist!! so we can now take it and rework, to sell stuff!! SOCIAL COMMENTARY GIRL POWER! It's almost 2014, not the 50s, and there are plenty of resources out there. I feel sorry for people that believe this is about anything other than a smart Stanford grad exploiting a void in the marketplace to make money.

Ps - I have to ask for irony sake, was the founder ever actually an engineer? The Wash Post article about her doesn't mention that. "Before launching Goldieblox, Sterling, 30, was director of marketing for a jewelry company and spent several years as a brand strategist for a design agency, collaborating with clients including Microsoft, the New York Knicks and Pedigree dog food." She def knows her marketing...